The Ideological Functions of Ecocide
35 Hague Yearbook of International Law (forthcoming 2023–24)
46 Pages Posted: 20 Dec 2022 Last revised: 14 Sep 2023
Date Written: September 12, 2022
This essay presents an ideological and structural Marxist critique of the international environmental law concept of sustainable development, as embodied in the emerging international crime of ecocide. Ecocide is defined as “unlawful or wanton acts [that have] severe and either widespread or long-term damage to the environment.” As part of a larger movement to use international law to address the ecological crisis, there has been a push to amend the International Criminal Court’s statute to include ecocide as a stand-alone offense. The proposed amendment has generated much debate; however, the default position of these arguments is that it would be, on the whole, a good to criminalize ecocide. This essay begins from a different premise by arguing that criminalizing ecocide may paradoxically harm the environmental movement by re-inscribing the liberal ideologies and capitalist relations of production which ensure that “business goes on as usual.”
The argument unfolds in three movements. First, Emmanuel Levinas’s radical “ethics of alterity” is used to destabilize free-market liberalism’s individual-centered ethos and expose the incommensurability of criminal law—predicated on individual culpability—and environmental law’s recognition of collective responsibility for the ecological crisis. The second move examines the anthropocentric ideology of sustainable development, arguing that at the level of problematic, ecocide aims to ameliorate the climate crisis, yet nevertheless reinscribes the liberal framework of capital development in its justificatory structure—its thematic. The danger is that in setting a fixed, bright-line threshold of criminality, acts that do not rise to that threshold—the day-to-day acts of human industry that are the real drivers of climate change—are legally condoned and thus justified by the socially-beneficial standard contained in the concept of sustainable development.
The third move looks to the work of Antonio Gramsci and regulation-theory Marxism to contemplate how legal-moral ideologies such as sustainable development function in the reproduction of capitalist relations in a globalized bourgeois society. Regulation theory is principally concerned with how capitalism manages the crises that result from its inherent contradictions. However, regulation theory may be extended to analyze how relations structured in hierarchy, domination, and exploitation are maintained and reproduced when faced with exogenous crises such as the climate crisis. Regulation theory’s stress on contingent or “accidental” strategies, and the Althusserian concepts of “articulation” and “interpellation,” are used to demonstrate how ideologies contained within seemingly desirable social regulations (i.e., ecocide) can ultimately act as apologia for the very problems they intend to address.
The point is not that the criminalization of environmental destruction is a misguided objective. Rather, the point is to show that a truly emancipatory environmental movement must be attentive to the ideologies of capitalism that reproduce the conditions that have led to the crisis, and to contest them at every level. Ideology is thus understood as a terrain of conflict in the global class struggle, and that even something as desirable as the criminalization of ecocide must become a site of a Gramscian “war of position” if we are to meaningfully confront the ecological crisis.
Keywords: Ecocide, International Criminal Law, Ideology, International Criminal Court, Public International Law
Suggested Citation: Suggested Citation